Topics menu

Vol. 151, No. 26 — July 1, 2017

Regulations Amending the Vessel Operation Restriction Regulations

Statutory authority

Canada Shipping Act, 2001

Sponsoring department

Department of Transport

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Proposed amendments are being requested to the Vessel Operation Restriction Regulations (the Regulations) by local authorities in the provinces of Ontario, British Columbia and Quebec, who have identified errors in the geographic coordinates of certain lakes identified in the schedules to the Regulations. These errors and omissions can lead to regulatory misinterpretation and/or confusion resulting in a negative effect on the safety of the users of these bodies of water.

Lac Sainte-Marie is located in the Province of Quebec, within the territory of the municipality of Nominingue and the Antoine-Labelle regional county municipality. The small size of the lake and the variety of water activities that take place on the lake have led to escalating conflicts between users, specifically between people practicing motorized activities and those who perform nonmotorized activities. In order to try and protect user safety, reduce conflict and create a fair environment, the municipality established a voluntary code of ethics to follow when using the lake. To help ensure compliance, the municipality implemented a reporting procedure for people to lodge complaints and identify those instances of users breaking the rules of the voluntary code. After five years, and 647 complaints lodged, the voluntary code has proven to be ineffective and the municipality has requested formal restrictions for this lake.

The lower portion of the Niagara River, located south of the Whirlpool (at the Woodpile) and north of the Whirlpool Bridge of the Niagara Falls Bridge Commission, within the City of Niagara Falls, in Ontario, is a treacherous part of the river containing class 5 rapids and significantly fluctuating water depths. Due to the current and rapids in this part of the river, crafts trying to navigate here would have no support in the event of an emergency. First responders in Ontario have no on-water presence in this area. No air support is available due to the high angle environment which provides reduced to no ability to undertake an air rescue. An air rescue attempt could significantly endanger the aircraft and crew. In addition, there is no evidence that any means of self-rescue are in place or available should passengers be ejected into the water, or in the event that a vessel is rendered unable to navigate these waters during an attempt. To ensure public safety and to protect the public interest, the City has requested a restriction for this portion of the river.

Background

The Regulations, made pursuant to the Canada Shipping Act, 2001 (CSA 2001), provide for the establishment of restrictions to boating activities and navigation on Canadian waters.

Increased water activities due to population growth and the technical evolution of vessels have resulted in an increase in conflict between waterway users. As a consequence, there is an increased risk to users’ safety and, in some instances, an increased risk to sensitive ecosystems. Each year, Transport Canada (TC) receives a number of applications from local authorities to impose or amend restrictions on navigation in order to enhance the safety of navigation, to protect the environment or to protect public interest. The amendments are proposed by local authorities and the justifications for the amendments are based on the applications provided to TC.

Lac Sainte-Marie

Lac Sainte-Marie is a small and narrow recreational lake, and measures only 1 120 m in length. It can be accessed via a public landing. There are 72 waterfront dwellings and two commercial waterfront properties, both cottage rental companies. The main activities that take place on Lac Sainte-Marie include swimming, non-motorized activities, fishing and snorkelling. Motor boating and towing activities are among the most marginal uses.

In order to try and protect user safety and to create a fair environment, the municipality established a code of ethics to follow when performing activities on the lake. The code was developed by the municipality in consultation with local stakeholders, cottagers, the cottage owners and other users of the lake. After two consultation sessions, a draft of the code was developed. It was sent by email on June 29, 2012, to representatives of the various participant groups to solicit their feedback.

The voluntary code included requirements such as the washing of motorboats, minimizing the creation of waves and navigating in circles, prohibition of the use of ballast water, and a rule limiting travel to a maximum of 10 km/h at all times, except within the boundaries defined for fast boating according to a set (and agreed upon) schedule. Comments in relation to the email (June 29, 2012) and those received at the two consultation sessions provided the baseline for the code of ethics. The code was presented to the public on August 4, 2012. In addition to individual dissemination to locals, three information signs were installed at the Lac Sainte-Marie landing and brochures were printed and distributed to people launching their boats from the washing station. During the development of the code, participants were notified, and it is clearly stated in the code, that if the non-regulatory approach proved to be unsuccessful, formal regulatory restrictions would be sought and implemented. Stakeholders agreed that should a formal regulatory restriction be necessary, the most effective way to protect the safety of users of the lake would be to implement restrictions under Schedules 3 and 6 of the Regulations.

Niagara River

Currently in Canada, there are no active or ongoing uses for the part of the river identified as problematic due to the treacherous class 5 rapids. During the 1970s, a commercial venture was undertaken by Niagara Gorge River Trips Inc. to commercialize thrill rides in this location. During the 11th trial run of the raft tour, the raft capsized, throwing 29 people into the water; three fatalities were recorded.

The rapids have standing waves in excess of 7.5 m, and due to Ontario Power Generation’s fluctuating demands for electricity production, the depths of the water are changed without notice, resulting in as much as 4.8 m of depth fluctuation. These changes adversely affect the ability for operators to determine or predict their route at any stage of a voyage through this section of the river.

Objectives

The objectives of the proposed amendments are to assist in the maintenance of an effective enforcement regime, promote the viable and effective use of Canadian waters, and increase safety for all boaters. The proposed restrictions are intended to enhance safety, reduce user conflict, protect the public interest and help protect the integrity and ecology of the lakes. In all cases, each problem area has been assessed and the type of restriction matches the circumstances of the case. Local communities, enforcement agencies and local and municipal governments are proposing, justifying and supporting the proposed amendments.

Description

The Regulations provide for the establishment of restrictions to boating activities and navigation in Canadian waters. The restrictions set out in the schedules to the Regulations include prohibitions with respect to access by vessels to specified waters; restrictions on the mode of propulsion used; maximum engine power or speed limits; and prohibitions on recreational towing activities (e.g. water-skiing). The schedules to the Regulations also specify for which waters a permit is required in order to hold a sporting, recreational or public event or activity (e.g. regattas and dragon boat races).

The proposed amendments to the Regulations include the following:

• Making corrections to existing restrictions on 1 body of water in the province of Ontario, 42 bodies of water in the province of British Columbia, and 20 bodies of water in the province of Quebec, to accurately reflect the geographical coordinates. Correcting these errors will increase the clarity and enforceability of the Regulations, decrease potential confusion between users of the waterways and TC’s enforcement partners, and will lead to increased safety for all users.

• Adding a new Schedule 3 restriction (Waters on Which Power-driven Vessels Are Prohibited) and a new Schedule 6 restriction (Waters on Which Power-driven Vessels and Vessels Driven by Electrical Propulsion Are Subject to a Speed Limit) for Lac Sainte-Marie in the Municipality of Nominingue, Quebec. The proposed restrictions would prohibit the use of all gas powered vessels on the lake and would set a maximum 10 km/h restriction for vessels driven by electrical propulsion.

• Adding a new Schedule 1 restriction (Waters on Which All Vessels Are Prohibited) that would prohibit the use of all vessels, both motorized and non-motorized, in the area of the Niagara River located south of the Whirlpool (at the Woodpile) and north of the Whirlpool Bridge of the Niagara Falls Bridge Commission, within the City of Niagara Falls, Ontario.

Benefits and costs

Costs

The proposed amendments to correct geographical coordinates will have no associated costs.

There are potential costs involved for the residents (cottage owners) on Lac Sainte-Marie. Those who own a power boat and who would still wish to engage in power-boating or towing activities will be required to take their vessel to an adjacent lake. The municipality has indicated that a one-time yearly charge of $20 would be required to use the public boat ramps. There are also non-quantifiable costs associated with the prohibition of motorized vessels on Lac Sainte-Marie. There would be costs associated with the lost opportunity for those that would wish to use their motorized vessels on the lake and the additional costs associated with an individual deciding to move their vessel to an adjacent lake, for gas, time and any perceived inconvenience. Given the fact that it is a very small percentage (approximately 5%) of cottage owners who are opposed to the proposed amendments, it can be assumed that the overall costs of the proposal would be low.

There are no costs associated with the proposed restriction for the Niagara River.

Benefits

Minimal savings may be seen as a result of the reduced number of compliance calls to enforcement agencies, because there will be less confusion due to the correction of geographic location identifiers.

The two local cottage owners with businesses located on Lac Sainte-Marie have indicated that the proposed restrictions will have benefits for their businesses. The owners have indicated that they are losing customers due to the conflicts between power-boaters and non-motorized water users. Current and potential cottage renters have indicated that they would prefer to rent a cottage on a lake that offers safe non-motorized water activities, and may be forced to take their business elsewhere until the conflicts are resolved.

There are also associated non-quantifiable benefits as a result of the proposed restrictions, including the improved quality of life and the safety for the cottage owners and users of Lac Sainte-Marie.

Non-quantifiable safety benefits, such as the protection of human life, would be realized by banning vessel usage on the identified treacherous portion of the Niagara River.

“One-for-One” Rule

The “One-for-One” Rule does not apply, as there is no change in the administrative costs to businesses.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

Consultations were conducted in every location where a proposed change is being requested by the local authorities and enforcement partners. The proposed amendments are being requested by local authorities to TC. Transport Canada only proceeds with potential amendments if a majority consensus exists within the community from which the request originates. Local communities, enforcement agencies, local and municipal governments are proposing, justifying and supporting the proposed amendments.

The proposed amendments to correct geographical coordinates are administrative in nature and are fully supported by stakeholders.

Lac Sainte-Marie

Significant local consultations have taken place regarding the proposed Schedule 3 and 6 restrictions for Lac Sainte-Marie. The consultation sessions revolved around the creation of the voluntary code of ethics and then continued further with the proposed Schedule 3 and 6 restrictions under the Regulations.

In early 2013, a liaison agent from the Conseil régional de l’environnement des Laurentides (CRE Laurentides) and an employee from the municipality consulted every resident and both cottage rental businesses (via door-to-door visits) on Lac Sainte-Marie to explain in detail the importance of respecting the code of ethics and that, should the voluntary code of ethics fail, the consequence would be the implementation of formal regulations.

Of the dozen or so power-boat owners on the lake, there are four individuals who are opposed to the proposed Regulations. These four individuals were involved in the creation of the voluntary code of ethics and were aware of the potential for the implementation of formal regulations should the voluntary code fail in maintaining the harmony and the well-being of the users of the lake.

Niagara River

A public consultation program was undertaken by the City of Niagara Falls throughout the spring of 2016 for the proposed restriction on the Niagara River. The program consisted of a variety of consultations and communication methods, including two meetings that were open to the public. In addition, letters were sent by registered mail on two occasions to local Aboriginal groups inviting them to participate in the public meetings or to contact the City directly with comments if they were unable to attend. No negative comments were received throughout the consultation process, and strong support was given to the proposal.

Rationale

The proposed amendments to update the geographical coordinates are intended to provide greater clarity in the accuracy and enforceability of the Regulations. The proposed amendments may reduce confusion between users of the waterways. Also, ensuring the correct geographical coordinates are listed for those lakes and rivers included in the schedules to the Regulations will remove uncertainty and ensure enforcement officers have the correct and most up-to-date information when enforcing the Regulations.

The proposed amendments for Lac Sainte-Marie are designed to increase the safety of users on this water body by reducing the conflicts between motorized activities (e.g. motor boating, towing) and recreational (non-motorized) water activities (e.g. canoeing, swimming). The municipality instituted a reporting procedure for people to lodge complaints and identify those instances of users breaking the rules of the voluntary code. With 380 breaches recorded from 2012 to 2013, it became evident that the code of ethics compromise was not successful in resolving the problems related to safe usage for all parties on the lake. When a contravention of the code was observed, the complainant had to fill out a form with the details of the contravention and attach, as needed, visual materials supporting their statement (e.g. video and/or photographs). There continue to be numerous complaints lodged. A single complaint was filed in 2014 (due to the fact that the implementation of the restrictions was anticipated for the 2014 boating season). There were 147 complaints lodged in 2015 and recently 120 complaints recorded for the 2016 boating season. According to the municipality, the proposed restrictions are the best and only solution to protect the users of lake and to restore social peace among cottage owners. The issues surrounding the usage of the lake and the conflict between its users have been ongoing for over a decade, and the voluntary code implemented by the municipality did not work.

Because the alternative non-regulatory measures were unsuccessful, the municipality has determined that the adoption of regulatory measures is the only viable option in this situation. The proposed restrictions under Schedules 3 and 6 were chosen because, to be effective, the implemented restrictions must be easy to enforce and not open to interpretation.

The proposed restrictions will provide health and safety benefits by reducing ongoing conflicts between motorized activities and recreational water activities for users of the lake, thereby ensuring increased safety for those individuals using the lake. In addition, the prohibition of motorized vessels may help to protect the shoreline environment. The municipality has also indicated that with no high-speed crafts travelling on the lake, the waves and wake will be significantly reduced, which will in turn cause less shoreline damage and disturbance.

The Niagara River divides Canada and the United States; therefore, only that part of the area that is considered to be within the Canadian waterway will be included in the proposed restriction. However, the United States Coast Guard has also expressed their concern about this portion of the river and is supportive of the proposed restriction, and is therefore applying for a restriction on the U.S. side of the river that would complement the proposed Canadian restriction. Rescue personnel have indicated that even if a rescue was attempted, it would be extremely dangerous, and it would place the first responders in a situation where the risk is considered extremely excessive. In addition, first responders have indicated that a rescue attempt would likely be unsuccessful.

Because of the dangerous nature of this part of the river, there are no alternative solutions to this issue.

The proposed restriction would provide a significant safety benefit. Since the area proposed for a restriction is extremely treacherous (class 5 rapids) and can have significant and rapid water depth variations, banning its usage by any vessel will provide an essential safety benefit for all Canadians.

Implementation, enforcement and service standards

The Contraventions Regulations, made pursuant to the Contraventions Act, set out prescribed fine amounts for contraventions of regulations made under the CSA 2001. The Regulations have specific contravention amounts to a maximum of $500 under the Contraventions Regulations. Enforcement is by way of summary conviction or ticketing under the Contraventions Act. The Regulations specify the classes of persons who are entitled to enforce the Regulations and include the Royal Canadian Mounted Police (RCMP), provincial and municipal police forces, as well as other groups such as special constables, conservation officers, wildlife officers, marine safety inspectors and marine patrol officers.

As matters pertaining to navigation and shipping fall under jurisdiction of the federal government, the amendments to the Regulations are used as a mechanism whereby local authorities can respond to local safety situations and threats to the environment or the public interest, by partnering with the federal government to enact regulations under the CSA 2001. Since the philosophy behind the Regulations is one of partnership between federal, provincial and municipal governments through an existing program, TC staff provides regulatory briefings and other support to assist local enforcement agencies in their enforcement functions.

For Lac Sainte-Marie, the restrictions will be enforced by the Sûreté du Québec. A maximum fine of $200 may be issued for operating power-driven or electrically propelled vessels where prohibited or for operating power-driven or electrically propelled vessels over the maximum speed specified. In addition, a maximum fine of $500 may be issued for operating a vessel in an unsafe manner.

In Niagara Falls, the restriction will be jointly enforced by the Niagara Parks Police (NPP) and the Niagara Regional Police Services (NRPS). A maximum fine of $200 may be issued for operating a vessel (power-driven or electrically propelled) where prohibited.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Michele Rae, Chief, Regulatory Development, Legislative, Regulatory, Policy and International Affairs, Marine Safety and Security, Department of Transport, Place de Ville, Tower C, 330 Sparks Street, 11th floor, Ottawa, Ontario K1A 0N5 (tel.: 613-991-3008; TTY: 1-888-675-6863; email: michele.rae@tc.gc.ca).

Ottawa, June 19, 2017

Jurica ČapkunAssistant Clerk of the Privy Council

Regulations Amending the Vessel Operation Restriction Regulations

Amendments

1 Part 2 of Schedule 1 to the Vessel Operation Restriction Regulations(see footnote 1) is amended by adding the following after item 25:

Item

Column 1

Name Given by the Gazetteer of Canada or Description

Column 2

Specific Location

Column 3

Location Reference (Gazetteer of Canada Reference System)

26

That part of the Niagara River that lies within Canada and is
south of the Whirlpool (Woodpile) and north of the Whirlpool
Bridge of the Niagara Falls Bridge Commission

43°07′08″ 79°04′04″ to 43°06′33″ 79°03′30″

43°06′50″ 79°03′37″

2 The portion of item 1 of Part 3 of Schedule 1 to the Regulations in column 3 is replaced by the following:

Item

Column 3

Location Reference (Gazetteer of Canada Reference System)

1

49°33′01″ 123°14′24″

3 The portion of item 5 of Part 6 of Schedule 1 to the Regulations in column 3 is replaced by the following: